Appeal of Bow School Dist., 89-489

• Decision Date: 22 March 1991
• Docket Number: No. 89-489,89-489
• Citation: 588 A.2d 366,134 N.H. 64
• Parties: , 66 Ed. Law Rep. 1148 Appeal of the BOW SCHOOL DISTRICT (New Hampshire Public Employee Labor Relations Board).
• Court: New Hampshire Supreme Court

Page 366

588 A.2d 366

134 N.H. 64, 66 Ed. Law Rep. 1148

Appeal of the BOW SCHOOL DISTRICT (New Hampshire Public Employee Labor Relations Board).

No. 89-489.

Supreme Court of New Hampshire.

March 22, 1991.

Law Offices of Alan Hall P.A., Concord (Alan Hall on the brief and orally), and Wadleigh, Starr, Peters, Dunn & Chiesa, Manchester (Robert E. Murphy, Jr., and Kathleen C. Peahl also on the brief), for appellant, Bow School District.

James F. Allmendinger, Staff Atty., NEA-New Hampshire, Concord, by brief and orally for respondent, Bow Educ. Ass'n.

Barbara Ward, Bow, by brief for New Hampshire School Nurses' Ass'n, as amicus curiae.

HORTON, Justice.

In this appeal, the Bow School District (the "district") challenges a ruling of the New Hampshire Public Employee Labor Relations Board (the "PELRB") granting the petition of the Bow Education Association, NEA-NH (the "association") to modify the Bow teachers' bargaining unit to include the position of school nurse. For the reasons that follow, we affirm the decision of the PELRB.

The original Bow teachers' bargaining unit certified in 1976 consisted of "[a]ll full-time and half-time teachers ... including Art, Music, Physical Education, Resource Center Coordinator, Guidance Counselor, [and] Educational Health Specialist." During negotiations for a new collective bargaining agreement in 1981 to supersede the original agreement, the association proposed to include school nurses in the unit. The parties, however, negotiated instead a change in the language of the recognition clause, stating that the unit would include only "full-time and half-time teachers ... including art, music, physical education, media generalist, guidance counselor, speech therapist, [and] health educator employed in that capacity." Again unable to resolve their differences on the issue of including the school nurse, the parties in 1982 signed a "sidebar" agreement not to seek modification of the bargaining unit, and they renewed this agreement each year until it was allowed to expire at the end of the 1987 school year on June 30, 1988.

On October 7, 1988, the association filed a modification petition with the PELRB seeking to add the position of school nurse to the bargaining unit. In its petition, the association asserted that the bargaining unit should be modified because the Bow Elementary School nurse was actively engaged in teaching and that the sidebar agreement preventing modification of the unit had expired. The term of the collective bargaining agreement between the school district and the association did not end, however, until June 30, 1989; a subsequently negotiated collective bargaining agreement, running from July 1, 1989, through June 30, 1992, did not include the school nurse in the bargaining unit. The district submitted exceptions and a motion to dismiss in opposition to the association's petition, arguing that there was no change in circumstances necessitating the inclusion of the school nurse in the bargaining unit, that there was no community of interest between the school nurse and the present members of the bargaining unit, and that granting the requested modification would alter the terms of an existing collective bargaining agreement. Following an April 18, 1989 hearing, the PELRB granted the association's petition, modifying the teachers' bargaining unit to include "[a]ll full-time and half-time teachers ... including art, music, physical education, media generalist, guidance counselor, speech therapist, health educator and nurse employed in that capacity." The school district's motion for rehearing, arguing, inter alia, that the PELRB's decision was inconsistent with its own precedents, was denied.

On appeal, the school district objects to the modification as a significant and unexplained departure from previous PELRB decisions and asks us to formulate a rule of law allowing school nurses to be included in teachers' bargaining units only if they are actively engaged in teaching in a classroom setting. It further argues that the PELRB failed to support its determinations that the changed circumstances recommended by PELRB Rule 302.05, and the community of interest between the nurses and the other members of the teachers' bargaining unit which the PELRB is directed to consider under RSA 273-A:8, I, exist.

The district requests a rule of law to bring uniformity to this area, specifically, a requirement that school nurses may only be included in the teachers' bargaining unit when they are actively engaged in teaching. However, we are unpersuaded that the inconsistencies alleged by the district represent anything more than the PELRB properly exercising its responsibility to determine the appropriate composition of bargaining units, and we find no compelling reason to limit that discretion with a fixed rule. In Appeal of the University System of New Hampshire, 131 N.H. 368, 553 A.2d 770 (1988), we held that the PELRB has the discretion to redetermine the composition of bargaining units. Id. at 374, 553 A.2d at 774; see also Appeal of SAU # 21, 126 N.H. 95, 97, 489 A.2d 112, 113 (1985) (the PELRB has broad subject matter jurisdiction to determine and certify bargaining units and to enforce the provisions of the Public Employee Labor Relations Act); Appeal of the University System of N.H., 120 N.H. 853, 854, 424 A.2d 194, 195 (1980) (the legislature has vested the PELRB with primary authority to determine appropriate bargaining units). Although the decisions of the PELRB are subject to our review, we accord substantial deference to its findings of fact in collective bargaining matters, deeming them presumptively lawful and reasonable, and placing on the appealing party the burden of proving that the PELRB's determination was unreasonable or unjust. Appeal of University System of N.H., 131 N.H. at 370, 553 A.2d at 772; Appeal of University System, 120 N.H. at 854, 424 A.2d at 195-96. Recognizing the PELRB's expertise in this area, we have adhered to a policy of reversing its decision only when we find it has grossly abused its discretion in making a bargaining unit redetermination. See Appeal of White Mts. Regional School Bd., 125 N.H. 790, 794, 485 A.2d 1042, 1046 (1984). If the PELRB's decision represents a reasonable interpretation of RSA 273-A:8, I, and a reasonable application of that statute to the facts of the case, and if it is supported by evidence in the record, we will uphold it. University System v. State, 117 N.H. 96, 100-01, 369 A.2d 1139, 1141 (1977).

In support of its request that this court impose upon the PELRB a requirement that only school nurses actively engaged in classroom teaching be included in the teachers' bargaining unit, the district cites several PELRB decisions where classroom teaching duties were a factor in the PELRB's decision whether to include a school nurse position in a teachers' bargaining unit. Among these decisions are: Gorham Teachers Association/NEA-NH v. Gorham School District, PELRB Decision No. 89-72 (October 19, 1989) (school nurse occasionally taught health subjects in the classroom without supervision by a certified teacher); New Boston Education Association, NEA-NH v. New Boston School Board, PELRB Decision No. 89-60 (September 20, 1989) (school nurse could be included in a bargaining unit where she taught health education courses without the constant supervision of a certified teacher); Weare Teachers Association, NEA-NH v. Weare School Board, PELRB Decision No. 87-38 (July 6, 1987) (school nurse who spent fifteen percent of her time in classroom activities included in teachers' bargaining unit); Hanover Education Association v. Hanover School District SAU # 22, PELRB Decision No. 87-21 (March 12, 1987) (school nurse did not have a primarily educational or teaching mission); Bedford Teachers Association, NEA-NH v. Bedford School District, PELRB Decision No. 83-51 (November 7, 1983) (school nurse sufficiently different from teachers with respect to primary responsibilities). The amicus urges that the Bow Elementary School nurse would nonetheless be included under this proposed rule because the position possesses an integral teaching component and because several other employees included within the teachers' bargaining unit, such as the speech therapist and the guidance counselor, conduct their "teaching" duties on a one-to-one basis analogous to the interaction between the school nurse and individual students in the school health office. The district argues, however, that the record clearly demonstrates that the school nurse in this case acts principally as a consultant to the regular teachers, and another position in the Bow School District, the health educator, assumes most of the classroom health instruction responsibilities. Under the district's proposed rule, then, the school nurse would be excluded from the teachers' bargaining unit.

In its brief, the association cites several cases where a teaching component of the position proposed to be included in the teachers' bargaining unit was not an essential finding in the decision to allow or disallow a particular bargaining unit composition: Sanborn Regional Education Association, NEA-NH v. Sanborn Regional School District S.A.U. # 6, PELRB Decision No. 86-05 (January 16, 1986); Unity Education Association, NEA-NH v. Unity School District, PELRB Decision No. 83-55 (November 15, 1983); Mascenic Education Association, NEA-NH v. Mascenic Regional School District, SAU # 63, PELRB Decision No. 83-13 (May 3, 1983); Newfound Area Teachers Association v. Newfound Area School District, PELRB Decision No. 82-34 (June 1, 1982); Newport Education Association, NEA-NH v. Newport School Board, PELRB Decision No. 81-06 (March 26, 1981); Hillsboro-Deering Federation of Teachers, NHT-AFT, Local # 2348, AFL-CIO v. Hillsboro-Deering School District, PELRB Decision No. 81-16 (June 15, 1981); Raymond Teachers Organization, NEA-NH, PELRB Case No. T-0252 (May 26, 1976). From...